Dismissed

Smt Ashwini K Kulkarni v. Sri Gundu Rao

Karnataka HC22 Jul 2022MFA/3083/2022

Case brief

AI extract

What is this about?

In a family property dispute involving a Gift Deed between a father and his daughter, the High Court of Karnataka disposed of a Miscellaneous First Appeal filed under Order 43 Rule 1(r) CPC. The Court accepted an affidavit from the beneficiary assuring maintenance commitments and concluded that the appeal must be disposed of as a one-time appeal, thereby terminating the pending interim application

What did the court decide?

The appeal was disposed of; the pending interim application for injunction is disposed of accordingly.

Smt Ashwini K Kulkarni Vs Sri Gundu Rao — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF JULY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD

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MISCELLANEOUS FIRST APPEAL NO.3083/2022 (CPC)

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BETWEEN:

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SMT. ASHWINI K KULKARNI W/O KRISHNA M KULKARNI AGED 37 YEARS, R/O NO. B-201 NANDI DREAM HOME, 6^TH CROSS 1^ST B MAIN ROAD, 9^TH BLOCK 2^ND STAGE, NAGARABHAVI BENGLAURU - 560 072.

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... APPELLANT (BY SMT. S.R. ANURADHA, SENIOR ADVOCATE FOR SRI. RAGHAVENDRA S, ADVOCATE)

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AND:

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SRI GUNDU RAO S/O LATE VENAKTARAMAIAH AGED 83 YEARS OCC BUSINESS NO. 216, 16^TH CROSS, 5^TH MAIN ROAD, M.C. LAYOUT, VIJAYANAGAR BENGALURU 560 040.

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BABBUROOKAMME SEVA SAMITHI A SOCIETY REGISTERED UNDER

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THE PROVISIONS OF THE KARNATAKA SOCIETIES REGISTRATION ACT, 1960 HAVING ITS REGISTERED OFFICE AT NO.17, SHESHADRI ROAD, BENGALURU 560009

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REPRESENTED BY ITS SECRETARY N. SATHYAPRAKASH.

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... RESPONDENTS (BY SRI.G.B. MANJUNATHA, ADVOCATE FOR C/R2; R1 NOTICE DISPENSED WITH)

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THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER ORDER 43 RULE 1(r) OF CPC, AGAINST THE ORDER DATED 07.03.2022 PASSED ON I.A. NO.1 IN O.S.NO. 6245/2021 ON THE FILE OF THE XXXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-40), DISMISSING I.A. NO.1 FILED UNDER ORDER XXXIX RULES 1 AND 2 OF CPC.

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THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The controversy is because of the dispute between a daughter and her father [the first respondent] as also the Society [the second respondent] which is the beneficiary under the Gift Deed executed by the father on 5.11.2020 for one of the properties owned by him [ the subject property ]. The daughter, the appellant, has filed the suit in O.S.No.6245/2021 on the file of the XXXIX Additional City Civil Judge [CCH-40]), Bengaluru City [for short, 'the civil Court] ) for declaration that the Gift Deed dated 5.11.2020 executed by the father [the first respondent] in favour of the second respondent is

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not binding on her and for perpetual injunction against the second respondent [the beneficiary under the Gift Deed dated 5.11.2020] against altering the amenities such as electricity, water and sewerage etc., in the subject property. The appellant has also sought for injunction against changing the structure of the subject property.

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The civil Court by the impugned order has rejected the appellant's application inter alia concluding that the appellant has suppressed material facts and is dishonest in filing the suit. In this context, the civil Court has referred to the fact that appellant has not referred to the proceedings commenced by the first respondent against the appellant under the provisions of Sections 4 and 5 of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 for maintenance and the Gift Deed and the Release Deed executed by the first respondent in her favour for the three immovable

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properties respectively in Yeshwanthpur, Vijayanagar and Basaveshwaranagar, Bengaluru.

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Ms. S.R.Anuradha, the learned Senior

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Counsel for the appellant and Sri G.B.Manjunatha, the learned counsel for the second respondent, were heard on the previous hearing date, and both were categorical about essential circumstances of the controversy and that the appellant's case as against the impugned Gift Deed dated 5.11.2020 must be decided after trial. They submitted in unison that the subject property and the appellant’s property are adjacent properties with common basement for parking and facilities for water, electricity and sewerage. The second respondent [the beneficiary under the impugned Gift Deed dated 5.11.2020] has undertaken certain civil works in the subject property.

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Ms. S.R.Anuradha submitted that the

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appellant's apprehension and therefore the reason for the interim application for temporary injunction is because the second respondent, who is carrying out certain structural changes in the subject property, will disrupt not only the common facilities for amenities but also deny to the appellant's access to the common basement. Sri G.B.Manjunatha, on the other hand, was categorical that though the second respondent is undertaking certain structural changes to modify the subject property to house a facility for the senior citizens, it is only making alternative arrangement for availing separate facilities for the subject property and without disrupting the existing facilities. In fact, the learned counsel relied upon the categorical statement made in this regard in the second respondent’s statement of objections.

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In the light of these submissions and given the nature of the dispute between a daughter and her father with the father executing the Gift Deed for one of the properties in favour of the second respondent, this Court has also called upon the second respondent to file an affidavit on the arrangements made for the welfare of the first respondent.

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The Secretary of the second respondent, Sri.N.Sathyaprakash, has filed his affidavit categorically stating that the first respondent is accommodated in the first floor of the building, which is now being renovated, and more importantly, he has stated that the second respondent will undertake to provide all comforts for the first respondent for his life and the second respondent would not be interested in any immovable property that the first respondent may own other than the subject property.

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In these circumstances, this Court is of the considered view that the appeal must be disposed of taking on record the statement on behalf of the second respondent to provide all comforts to the first respondent for his life without being interested in any other property that he may own and none of the amenities in the subject property would be damaged or altered to disrupt the utilization of such amenities by the appellant as part of the ownership of the adjacent property. Finally, this Court must also observe that the civil Court’s finding on the suppression of fact by the appellant cannot impede the final adjudication in the suit.

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The appeal stands disposed of accordingly.

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In view of disposal of the appeal, the pending

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application does not survive for consideration and it is disposed of accordingly.

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SD/JUDGE

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SA Ct:sr

Smt Ashwini K Kulkarni v. Sri Gundu Rao

Case brief

What is this about?

What did the court decide?

Smt Ashwini K Kulkarni v. Sri Gundu Rao

Case brief

What is this about?

What did the court decide?

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